COURT FILE NO.: FS-21-0001-00
DATE: 2021-12-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LAURENE ANTONINA MANSON-SILLERY
W. Shanks, for the Applicant
Applicant
- and -
ROSS GARNET SILLERY
S. Lundin, for the Respondent
Respondent
HEARD: December 16, 2021, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Motion Reasons
Overview
[1] The applicant wife has brought a motion for temporary exclusive possession of the matrimonial home and temporary spousal support. That motion is set to be argued on March 4, 2022 and a timeline for document exchange and questioning has been set.
[2] This motion is for temporary temporary exclusive possession of the matrimonial home and temporary temporary spousal support in the amount of $2,604 or $1,589 per month. The wife also seeks that a jointly owned business, Sillery Professional Tree Service, cease effective immediately and reimbursement for household expenses of $9,020.94.
[3] The respondent husband seeks leave to amend his pleadings to make a claim for sale of the jointly owned matrimonial home and an order for sale of the home.
[4] It is agreed that leave be granted to amend the Answer and that the husband’s motion for an order for sale of matrimonial home and the wife’s claim for an interim order cessation of the business shall be argued on March 4, 2022.
[5] Therefore, the issues argued before me were temporary temporary exclusive possession and temporary temporary spousal support. The issue of reimbursement for past household expenses was not argued.
The Facts
[6] Both parties are 68 years old. They were married in 2004 after cohabiting since 1999. They separated in January 2020. Both have adult children from previous marriages.
Spousal Support
[7] The husband worked for CP Rail until he retired in March 2009. He has pension income from CP, CPP and OAS of just over $6,000 per month or almost $74,000 annually.
[8] In 2005, the parties started a tree cutting business. The company was incorporated in June 2007. The company is jointly owned and there is no formal shareholders’ agreement. The applicant looked after the bookkeeping for the business while the respondent and employees executed the work. Not all the records are available at this time, but it appears that the wife drew a salary of about $30,000 annually. Since separation, in 2020 or 2021, the applicant stopped working in the business and had a house cleaning job from May to September 2021 earning about $6000.
[9] It is not clear, at this point, what, if any, business income is being generated. But, in 2020, the respondent had employment income of $28,800 from the business.
[10] The parties also jointly own a rental property which generates monthly income of $650.
[11] No formal support has been paid but in May or June the respondent started to contribute about $1,000 monthly to the mortgage expenses.
[12] The wife claims that she is owed more because of other household expenses and has withdrawn about $12,000 from her savings to cover those expenses.
Exclusive Possession of the Home
[13] The parties separated on January 18, 2020 and, therefore, have been living under the same roof for almost 2 years. Not surprisingly, their descriptions of the living arrangements are contradictory. The wife deposes that she is confined to one bedroom and is living “under fear and intimidation.” The husband deposes that they have “essentially peacefully coexisted” in the matrimonial home.
[14] The husband challenges the urgency of this motion noting that counsel for the applicant began suggesting that a motion for temporary exclusive possession would be brought almost one year ago.
[15] While the wife deposes that she is confined to her bedroom, the husband deposes that the house has essentially been divided in half. He says that there is a door that separates the wife’s living quarters and his living quarters and that that door has a lock upon it installed by the wife. He states that her half of the house has her bedroom, den/office, bathroom with a whirlpool tub and sauna and that his portion of the house contains the kitchen which he says the wife has full access to and uses as she wishes. He deposes that there are patio doors in the wife’s bedroom and in the den/office which give her easy access to and from the house and that she uses the main entrance whenever she wishes.
[16] The affidavits are full of the allegations of improper behaviour by both which are denied by the other.
[17] The wife deposes that the husband has made living in the matrimonial home impractical by “continuously psychologically and physically assaulting, traumatizing me and unlawfully confining my movements.”
[18] Further, she says that she has been diagnosed with high blood pressure and that she has been instructed to monitor her medical condition. She says that this diagnosis is of great concern to her and her doctor and, if not reduced, she says that she may have a heart attack or stroke. Missing from the affidavit is any supporting medical information as to her condition and whether the hypertension is caused by stress or other health factors. No doubt, the entire situation is stressful to her. She states that she has had to undergo therapy from a counsellor to cope with the emotional abuse, but no records or details of treatment have been provided.
[19] With respect to the allegation that he physically assaulted his wife, the husband deposes that he has never assaulted the applicant and points out that her affidavit contains no examples of the allegations of physical assault by him. He deposes that he is aware that the applicant has contacted the police on more than one occasion since they separated but advises that he has never been charged by the police.
[20] In a supplementary affidavit filed “to correct the misleading information set out in” her husband’s affidavit there is no rebuttal to the husband’s assertions that there are no specifics of any incidents of physical assault.
[21] Each party claims to have no alternate suitable accommodation.
Positions of the Parties
Spousal Support
[22] The applicant seeks spousal support of $2,604 based on her actual income for 2021 of $24,462 and the respondents 2020 income which includes business income totaling $102,567. Alternatively, she seeks $1,589 based on their incomes for 2020 less business income and her taxable capital gains. Her income under that scenario is calculated at $26,110.
[23] The respondent proposes in his affidavit to pay spousal support of $1,500 per month based on his pension income ($73,766.76 as per his financial statement) and her income of CPP, OAS and allowing the wife to retain the rental income. The applicant’s total income under that scenario is $24,094. With this proposal he agrees pay one half of the mortgage, taxes, house insurance, and utilities. This proposal is assuming he can continue to reside in the matrimonial home until the motion is heard.
Exclusive Possession
[24] Both parties filed helpful authorities on the issue of exclusive possession.
[25] The wife argues that the emotional abuse and intimidating conduct initiated by the husband against the wife constitutes violence for the purposes of s. 24 (3)(f) of the Family Law Act[^1] and that the financial position of the parties make it easier for the husband to obtain other suitable and affordable accommodation.
[26] The husband argues that the party seeking exclusive possession of matrimonial home must establish, on the balance of probabilities, that the evidence relied upon falls within the provisions of s. 24(3) of the Family Law Act and that stress caused by the deterioration of the relationship is not the same as behaviour which is calculated to put the wife in fear of her husband’s behaviour to the extent that it impinges on her mental and physical health. In the light of “bare” allegations without confirmation, the husband argues that it would be improper to dispossess him of possession of the matrimonial home given the continued cohabitation for almost 2 years post separation.
Analysis and Disposition
Exclusive Possession
[27] S. 24 (3) of the Family Law Act sets out the criteria for making an order for exclusive possession:
Order for exclusive possession: criteria
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders or other enforceable support obligations;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.
[28] First of all, there are no children, no written agreement, and no helpful evidence of other suitable and affordable accommodation. These reasons will deal with the support order.
[29] As to financial position, I do not have sufficient financial information before me to allow me to consider that this factor is tipped in any one party’s favour.
[30] I accept that, for the purposes of this section, violence can include verbal and other behaviour that does not amount to physical assault.
[31] I am faced with contradictory evidence as to each party’s behaviour towards the other and, while I accept that the situation is stressful, I am not satisfied on this motion that the alleged behaviour of the husband has been proven or constitutes violence for the purpose of section 24(3). As such, I am not satisfied that a temporary temporary order for exclusive possession should be made.
Spousal Support
[32] The husband’s proposal closely aligns with the wife’s proposal based on his pension income and her income less business income and her capital gains. In fact, the husband’s proposal imputes about $2,000 less income to the wife.
[33] As the business income is not known, on a temporary temporary basis, I order that the husband pay $1,500 to the wife for spousal support and that he is to pay one half of the mortgage, taxes, house insurance, and utilities. This order is effective December 1, 2021.
Order
[34] Therefore, it is ordered:
a. Leave is granted to amend the answer within 30 days.
b. Respondent’s motion for sale of matrimonial home to be heard March 4, 2022.
c. Applicant’s motion for cessation of business to be heard March 4, 2022.
d. Applicant’s motion for temporary temporary exclusive possession of the matrimonial home is dismissed.
e. Applicant’s motion for temporary temporary spousal support allowed and respondent to pay the applicant spousal support of $1,500 per month effective December 1, 2021, with each party contributing equally to mortgage, taxes, insurance, and utilities associated with the matrimonial home.
f. Costs of this motion to be determined by the judge hearing the motion on March 4, 2022.
[35] Counsel should make sure that sufficient time is scheduled for the March 4, 2022, motion.
[36] After disclosure and questioning have been completed, the parties may benefit from a settlement conference in advance of the motion.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: December 30, 2021
COURT FILE NO.: FS-21-0001-00
DATE: 2021-12-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LAURENE ANTONINA MANSON-SILLERY
Applicant
- and -
ROSS GARNET SILLERY
Respondent
MOTION REASONS
Newton J.
Released: December 30, 2021
/cjj
[^1]: RSO 1990, c. F.3.```